Is discrimination ever allowed in job ads? Lawyer outlines legalities, best practices
A Quebec City bar caused a bit of a stir after posting a job ad on Facebook for a barmaid that stated applicants should not be “woke”, “pro-Liberal”, or “pro-CAQ”.
The bar, called Le Bar Sport Le Vegas, wrote in the post that it didn’t “want someone who, during the pandemic, would have called the police if their neighbours had visitors.”
After receiving backlash, the post was taken down. However, the bar owner, Richard Poulin, defended himself, arguing he had the right to “cherry-pick” his own employees, according to NoovoInfo News.
“We’re not in the 1960s and 1970s anymore," he argued. “People used to hide, but I’m not hiding. Don’t I have the right?”
Sarah Molyneaux, employment and human rights lawyer at McMahon Molyneaux Henriquez, says this incident raises serious legal issues:. “It causes concern to see an employer feeling empowered to discriminate contrary to their province’s laws."
Unlike in Ontario, where there is no strong protection under the Ontario Human Rights Code for political belief, Quebec does offer such protections, she says.
“It’s also illegal to make a stated intention to discriminate in your job postings."
According to Molyneaux, each province has its own list of protected characteristics that employers are not allowed to discriminate against when hiring or in their job ads.
“Generally, those include things like race, religion, gender, sexual orientation and disability,” she says. “Occasionally, we see the addition of political opinion or belief, and that is a protection that exists in Quebec, B.C., Manitoba, Newfoundland and Labrador, the Yukon, and in P.E.I. and New Brunswick.”
The Ontario Human Rights Code, requires job ads to not contain statements, qualifications or any wording that can directly link to characteristics such as, race, place of origin, colour, ethnic origin, sexual orientation, offences, family status, or disabilities.
“Some ads may not mention the ground of the Code directly but may unfairly prevent or discourage people from applying for a job,” the Code states.
While Quebec’s Charter of Human Rights and Freedoms doesn’t address job ads directly in the Charter, it does state similar expectations—with the additional protection of “political convictions.”
The Charter states: “No employment bureau may practice discrimination in respect of the reception, classification or processing of a job application or in any document intended for submitting an application to a prospective employer.”
In Ontario, if an employer intends to discriminate against the biases of political beliefs, it might not be the best business practice, but it wouldn't necessarily be illegal, Molyneaux says.
Molyneaux says that in most cases where employers intend to discriminate, they never actually state that intention.
But, if an incident occurs where an individual applies for a job and is denied due to bias against prohibited characteristics, there can be consequences.
“They can make an application to their human rights tribunal or Human Rights Commission and seek damages for discrimination and for any lost income. Generally, though, cases of job applications result in relatively modest damages,” she adds.
Even with the legislation, there are exceptions to the rule that allow employers to discriminate despite what the Charter or Human Rights Code states.
“A political party would be entitled to hire people to work for it in pursuit of its goals that share their political opinion... If there's a real requirement related to the performance of the job, you can discriminate on that basis, even where the protection exists,” Molyneaux says.
These exceptions normally fall under a bona fide occupational requirement, which usually applies to physical abilities, she says. This allows for a degree of discrimination if it’s a genuine requirement to do the job.
“If you're looking to hire a firefighter, asking them to be able to lift or carry a certain weight is a bona fide or true occupational requirement. That is a physical job, and people with certain disabilities are genuinely not going to be able to perform that work,” she says.
These requirements might also apply in the context of religion and gender.
“Other examples include things like personal care, where we might permit gender distinctions for some people,” she says. “If you are a religious organization, a church is entitled to hire a Christian to do its work related to religion.”
Employers must demonstrate that the bona fide occupational requirement is reasonable and justified, according to the Human Rights Code.
In the barmaid situation, the requirement would not apply, as political beliefs are not the purpose of the business or relevant to the job, Molyneaux says.
To ensure employers are compliant with the Code, Molyneaux says job ads should focus on the real qualifications and job duties.
“The things that you should be assessing are things that are truly relevant to the work that needs to be done and not extraneous characteristics,” she says, such as “ whether or not someone shares all of your beliefs or all of your characteristics.”
The Ontario Human Rights Commission provides guidelines and a checklist to follow when preparing a job ad.
Suggested questions include:
Are the words used in the ad to describe the job non-discriminatory?
Are the essential duties explained clearly?
Does the job ad include neutral language—for example, “salesclerk rather than “salesman”?
Does the employer remember to add a statement that they are an equal opportunity employer and that accommodations will be provided during hiring?
